dissenting.
I dissent from the majority’s conclusion that Jackson v. State, 413 P.2d 488 (Alaska 1966), and Wood v. Superior Court, 690 P.2d 1225 (Alaska 1984), were erroneously decided. In my view, these precedents correctly held that an attorney appointed to represent an indigent defendant in a criminal prosecution has no constitutional right to receive compensation for his services except in very limited circumstances.
We identified the authority for imposing this obligation on attorneys in part in Jackson where we said:
[T]he foundation of the assigned counsel system is a time-honored and traditional obligation of the bar to defend the indigent, without compensation, if called upon. However, it has not been the practice in Alaska to require counsel to serve without some compensation, even though the amount that is allowed is not comparable to what counsel would receive from a client able to pay.1
Jackson, 413 P.2d at 491 (footnote omitted).
In Wood, we reaffirmed the court’s authority to appoint counsel to represent indigent defendants in criminal proceedings. In so holding we said:
Wood first argues that courts do not have legal authority “to coerce one class of persons to involuntarily provide services to a second class of persons when no contractural [sic] or tortious relationship exists between them.” We rejected a similar argument in Jackson and see no reason to reverse now. Lawyers have traditionally been responsible for representing indigent clients, and courts have traditionally supervised the terms and conditions of this representation.2
690 P.2d at 1228. We also reaffirmed the constitutionality of imposing the obligation on appointed attorneys to represent indigent criminal defendants without payment of full compensation, stating in part:
Nor does an order requiring an attorney to represent a criminal defendant necessarily take the attorney’s private property without just compensation. Jackson’s holding on this issue is consist*445ent with the “vast majority” of federal and state courts decisions. It may be that in some extreme cases an assignment would cripple an attorney’s practice and thus rise to the level of a taking. But Wood has not shown that this is an extreme case.
Id. at 1229 (citations omitted and emphasis added). We further amplified our position in holding that although “[a] court may require an attorney to represent an indigent defendant without compensation, ... requiring an attorney to pay defense expenses out of his or her pocket takes the attorney’s private property.”3 Id. at 1230 (citations omitted and emphasis added).
I reject DeLisio’s argument that “the traditional rationale for the system compelling legal services for inadequate compensation is not viable.” There unquestionably exists in this country a tradition of compulsory representation of indigent defendants without full compensation, a tradition which is reflected in numerous court decisions dating back to the mid-1800’s.4 Of perhaps greater significance is the fact that the court rules for the district courts of the Territory of Alaska embodied this tradition and the court rules adopted shortly after statehood continued it.5 Specifically, the court rules in force before statehood allowed the trial judge, in his discretion, after the termination of the trial of a criminal case where an attorney was appointed to defend an indigent, to “make an allowance to such attorney as nominal compen*446sation for his services_” See Rule 25(b), supra note 5, quoted and explained in Jackson, 413 P.2d at 491.
This tradition and practice suggest that the framers of our constitution contemplated that this court would have the rule-making authority, pursuant to article IV, section 15, to appoint attorneys to represent indigent defendants in criminal proceedings. Thus, I am not persuaded that we should disavow our rationales in Jackson and Wood that lawyers have traditionally been responsible for representing indigent criminal defendants and that courts have traditionally supervised the terms and conditions of appointed attorneys’ representation of indigent defendants.
Nor am I persuaded by DeLisio’s arguments that judicially compelled representation of an indigent without adequate compensation constitutes a taking of the appointed attorney’s property in violation of the United States and Alaska Constitutions.6 Essentially the same arguments which are now advanced by DeLisio were explicitly rejected in Wood, wherein we said simply that “an order requiring an attorney to represent a criminal defendant [does not] necessarily take that attorney’s private property without just compensation,” and noted that this holding was consistent with the “vast majority” of federal and state court decisions.7 690 P.2d at 1229; see also note 4, supra.
It bears repeating here that we have not failed to acknowledge that in some extreme cases an assignment would cripple an attorney’s practice and thus rise to the level of a taking.8 Wood, 690 P.2d at 1229. Our prior decisions recognize a constitutional violation where the appointment imposes upon an individual lawyer a unique hardship but none where the obligation to serve is equitably imposed upon all members of the bar.
It remains my view that the rationale of Jackson and Wood that the traditional obligation of attorneys to represent indigent defendants furnishes adequate justification for rejection of a claim of an unconstitutional taking like that made by DeLisio here. Of crucial significance is the pivotal role played by appointed counsel in fulfilling the obligation of Alaska’s criminal justice system to accord indigent defendants their right to legal representation. I therefore dissent from the majority’s holding that requiring an attorney to represent an indigent defendant for less than full compensation violates article I, section 18 of the Alaska Constitution.9
. In writing for the court in Jackson, Justice Dimond additionally explained that an attorney implicitly accepted this obligation, upon taking the oath of admission to the bar:
The requirement of the attorneys’ oath and Canon [of Professional Ethics] 4 reflect a tradition deeply rooted in the common law — that an attorney is an officer of the court assisting the court in the administration of justice, and that as such he has an obligation when called upon by the court to render his services for indigents in criminal cases without payment of a fee except as may be provided by statute or rule of court. This principle is so firmly established in the history of the courts and the legal profession that it may be said to be a condition under which lawyers are licensed to practice as officers of the court.... “[T]he lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a 'taking of his services.'"
413 P.2d at 490 (footnotes omitted) (in part) quoting United States v. Dillon, 346 F.2d 633, 635 (9th Cir.1965), cert. denied, 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966).
. We responded to Wood’s argument that courts do not have the power to issue orders appointing counsel to represent indigent criminal defendants by pointing out that article IV, section 15 of the Alaska Constitution gives us authority to make and promulgate "rules governing the administration of all courts” and "rules governing practice and procedure in civil and criminal cases in all courts.” See 690 P.2d at 1228.
. We explained that
the cost of hiring a replacement attorney can justly be called an "expense” for which an incompetent attorney must be compensated, and we see nothing in the superior court’s order or in the handling of this case to suggest that attorneys who ethically must hire replacements are in fact reimbursed for this kind of expense. If an attorney can demonstrate that he or she cannot ethically take a case to which he or she has been assigned, forcing that attorney to hire a replacement is unconstitutional.
Attorneys who can competently handle a case they are assigned are in a quite different position. If they arrange to hire a replacement ... the added expense of hiring a replacement should be borne by the attorney, not the taxpayers. We hold that if an attorney is competent to handle the criminal case to which he or she is assigned, the fact that the attorney hires replacement counsel does not convert the order assigning the attorney to the case into a taking.
Id. at 1231 (footnote omitted).
I find this holding dispositive of DeLisio’s claim that the appointed attorney must be compensated for the usual costs and expenses incurred in defending an indigent accused.
. The following jurisdictions have recognized, in the years noted parenthetically, the general rule that assigned counsel for an indigent defendant has no right to compensation by the public in the absence of a statute or court rule: Alabama (1873), Alaska (1966), Arkansas (1876), California (1860), Florida (1972), Georgia (1873), Illinois (1857), Kansas (1868), Kentucky (1946), Louisiana (1891), Michigan (1850), Mississippi (1881), Missouri (1869), Montana (1874), Nevada (1879), New Jersey (1961), New York (1879), North Carolina (1967), Pennsylvania (1879), Tennessee (1871), Utah (1911), Washington (1892), West Virginia (1900). See Annotation, Right of Attorney Appointed by Court for Indigent Accused to, and Court’s Power to Award, Compensation by Public, in Absence of Statute or Court Rule, 21 A.L.R.3d 819, 823-24 (1968 & Supp.1986); United States v. Dillon, 346 F.2d at 637; Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, 146, cert. denied, 385 U.S. 958, 87 S.Ct. 393, 17 L.Ed.2d 304 (1966).
.Rule 25(b), Amended Uniform Rules of the District Court for the District of Alaska (effective October 1, 1957), provided:
In any criminal case where the court shall appoint an attorney to defend a poor person who has neither money nor property wherewith to employ counsel, the judge may, in his discretion, after the termination of said trial, make an allowance to such attorney as nominal compensation for his services therein, to be paid out of Fund "C’\ Said allowance, unless otherwise ordered by the court or judge, shall be (1) in misdemeanor cases, $50.00; (2) in felony cases less than capital, $150.00; (3) in capital cases, $250.00.
[Emphasis added]. Former Administrative Rule 15 (adopted October 9, 1959) also provided:
(a) Criminal. Attorneys appointed by the court to represent indigent persons shall be paid for this service according to the following schedule:
(1) Representation on plea of guilty and sentencing — $75.00.
(2) Representation on plea of not guilty and trial — $75.00 for each day or fraction thereof spent in court.
(b) Other. Attorneys appointed by the court to represent indigent persons in situations other than as provided for in (a) shall be paid a fee established by the court, commensurate with the time and legal problems involved.
. The "takings clause” of the fifth amendment to the United States Constitution provides: "... nor shall private property be taken for public use, without just compensation.”
Article I, section 18 of the Alaska Constitution provides: "Private property shall not be taken or damaged for public use without just compensation.” Similarly, article I, section 1 provides in part that “all persons have a natural right to ... the enjoyment of the rewards of their own industry.”
. In Williamson v. Vardeman, 674 F.2d 1211, 1214-15 (8th Cir.1982) (citations omitted), the court noted that:
The vast majority of federal and state courts which have addressed the due process issue have decided that requiring counsel to serve without compensation is not an unconstitutional taking of property without just compensation. These courts reason that compulsion of service is not a taking because there is a preexisting duty to provide such service. The source of this duty is a lawyer’s status as an officer of the court.
. Like Wood, DeLisio has made no showing that taking the assignment in question here would have the consequences of crippling his practice.
Implicit in our recognition in Wood that in unusual circumstances an appointment could result in a taking in the constitutional sense is our rejection of both the notion that the practice of law is merely an unprotected privilege and the view that an attorney’s services are personal services as distinguished from a protected property interest.
. I concur in the majority’s views that DeLisio has shown neither that he is incompetent to represent a criminal defendant nor that he was wrongfully denied a jury trial.